Department of Justice (DOJ) lawyers improperly brought forward new pieces of footage as evidence during a Jan. 6 defendant’s cross-examination at trial, without giving the defense enough time to review them, the defendant’s attorney alleged Thursday.
Zachary Rehl testified between April 11 and Tuesday in his ongoing trial with other former Proud Boys members for allegedly conspiring to oppose the January 2021 transfer of presidential power, along with related charges. Minutes before cross-examining Rehl Monday, the government revealed two U.S. Capitol CCTV videos, a body camera clip and an open source video, using the last one to question Rehl without immediately admitting they received it recently from a yet-unidentified source, Rehl’s attorney Carmen Hernandez said in a Thursday court filing.
The DOJ attorneys also used the first piece of body camera footage and a second one introduced Tuesday to cross-examine Rehl, despite neither of those videos having been previously provided in discovery, Hernandez claimed, calling them “particularly grainy and unclear.” In one of the body camera videos, Rehl allegedly lifted a pepper spray device near police officers on Jan. 6, while Hernandez argued the footage was “particularly unstable” at that moment.
“Mr. Rehl does not have the ability to authenticate clips of [body camera] videos taken by others, without any indication of the integrity, chain of custody or other authenticating factors,” Hernandez argued. “Springing such poor quality videos on Mr. Rehl at the last moment without providing him an opportunity to inspect and properly review the videos impaired his rights to confront the evidence.”
Hernandez called for excluding the footage from evidence, saying the DOJ lawyers’ moves to produce them for the first time during cross-examination broke Federal Criminal Procedure Rule 16. The rule requires that the government allow defendants to inspect documents that are relevant to preparing their cases or that the government intends to use during the stage at trial when it presents evidence.
“The [body camera videos] were particularly grainy, unclear and unstable. Using them against Mr. Rehl as the government did without disclosing their provenance or integrity also violates the Due Process Clause,” Hernandez continued. “It was unfair and ambushed Mr. Rehl with materials that provided unsubstantiated innuendo rather than evidence.”
The lawyer for fellow Jan. 6 defendant Dominic Pezzola, Roger Roots, has alleged that government agencies had 50 or more informants situated among Jan. 6 defendants on or around that day. Judge Timothy Kelly has denied defendants’ requests to declare a mistrial.
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